Apple Hires Free Speech Lawyers in FBI iPhone Unlocking Battle

Apple hired two attorneys, Theodore Olson and Theodore Boutrous, well known for their expertise in freedom of speech cases as part of the legal defense it's using to fight a Federal court order to strip out security protections in iOS so the FBI can hack into an iPhone. Their names showed up in court documents from the case, hinting that Apple may be planning to use First Amendment freedom of speech arguments as part of their justification for not complying with the order.

Mr. Olsen is known for his win in the 2010 Citizens United v Federal Election Commission case. Mr. Boutrous has a history of representing media outlets in freedom of speech cases.

Apple retains freedom of speech experts for FBI court order fightApple retains freedom of speech experts for FBI court order fight

The FBI was granted a court order earlier this week compelling Apple to create a special version of iOS it can use to launch a brute force attack on the passcode for an iPhone recovered from one of the shooters in last year's San Bernardino County Department of Public Health terrorist attack. The phone had been issued by the county to one of the shooters, who was also an employee, Syed Rizwan Farook.

Because the iPhone is password protected, the device's contents is encrypted and inaccessible to law enforcement authorities. Built-in security measures will wipe the iPhone's data after ten failed login attempts, hence the FBI's push for an order compelling Apple to sidestep the security feature.

The FBI says it wants the special iOS version only for this one iPhone because they think it may contain important information related to the shooting. Apple wants to avoid creating the hackable iPhone operating system over fears it'll set a precedent where our own government continues to use it, governments around the world demand it for their own uses.

"The government suggests this tool could only be used once, on one phone. But that's simply not true," Apple CEO Tim Cook said. "Once created, the technique could be used over and over again, on any number of devices."

Next up: Apple's First Amendment Argument 

Apple's First Amendment Defense

Apple has until February 26 to respond to the court order, although the Department of Justice filed a motion Friday afternoon to compel Apple to comply now. The DOJ filing stated, "Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court's [previous order], Apple has responded by publicly repudiating that order."

Apple will likely argue the FBI court order is infringing on free speechApple will likely argue the FBI court order is infringing on free speech

Apple's legal team will presumably argue the court order amounts to compelled speech, which is prohibited by the U.S. Constitution's First Amendment protection of free speech. The amendment states,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The freedom of speech clause in the Constitution has been interpreted more than once to also mean the government can't compel people—or in this case, companies—to make statements. The U.S. Supreme Court has already ruled computer code can be considered speech, and as such the government can't force Apple to create code designed to bypass the iPhone's built-in security features without violating the Constitution.

Not all code is protected, but Apple may be able to present a strong case considering the software the FBI wants would potentially infringe on our Fourth Amendment right to be free from unreasonable search or seizure. In essence, the FBI and Department of Justice are acting outside the U.S. Constitution by ordering Apple to write code that infringes on our rights.

This all adds up to a ride all the way to the U.S. Supreme Court, and it's a safe bet both Apple and the FBI are willing to take the case that far. This is about setting a precedent, and it's one Apple isn't comfortable being a part of.

[Thanks to Reuters for the heads up]